1703591 (Refugee)

[2020] AATA 5491

1703591 (Refugee) [2020] AATA 5491 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703591

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Nicholas McGowan

DATE:27 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made 27 October 2020 at 1:11pm

CATCHWORDS

REFUGEE – Protection visa – Vietnam – anti-government views – look for freedom and democracy – applicant does not meet any of the criteria – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 36, 65, 417,499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

WRITTEN STATEMENT OF DECISION AND REASONS

REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant who claims to be a citizen of Vietnam, applied for the visa on 15 January 2015.

3.    The applicant is represented.

4.    A pre-hearing submission and other documents have been submitted in consideration of the review.

5.    The applicant was invited to attend a review hearing on 27 October 2020, as the Tribunal made clear in the invitation to the applicant that it was unable to come to a favourable finding on the evidence before it alone. The Tribunal conducted the hearing by teleconference consistent with authority given it under the Act. The Tribunal directed (under the Act) that the matter be heard in private, as the Tribunal has determined the state government restrictions currently in force in Victoria due to the SARS (Covid-2) pandemic make it impractical at this time to conduct the hearing open to the public. Oral evidence was also received, during the Tribunal’s hearing into the review, from the applicant’s sponsor (his wife), and three witnesses who appeared on behalf of the applicant. Their oral evidence has been taken into consideration.

CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7.    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8.    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

9.    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

Consideration of claims and evidence

1. The applicant’s claims for protection and supporting evidence are contained in the Departmental file [file number deleted]. The applicant has provided this Tribunal a copy of the delegate’s refusal decision as part of the documentation he provided with his application for review of the protection visa refusal decision

2. The applicant wrote in his protection via application that he sought protection in Australia so that he did not have to return to Vietnam because:

   “Vietnam is still an oppressive country and I do not want to return to it. There is no freedom there.”

3. The applicant wrote in his application that the reason he left Vietnam was because:

   “I left Vietnam to look for freedom and democracy.”

   “I would like to build a new life.”

4. In response to the question of what the applicant thought will happen to him if he were to return to Vietnam, the applicant wrote:

   “I really do not know what the local authority would do because they do know that I do not accept the regime that I believe oppressive and undemocratic”.

5. In response to the question, ‘Did you experience harm in that country?’, the applicant selected the ‘box’ marked ‘yes’ and wrote:

   “I can not accept authorities receiving bribes or asking for money when I dealt with them. I got used to the free and democratic way of life in Australia and feel harmed psychologically if I have to return to Vietnam.”

6. In response to the question, ‘Did you seek help within the country(s) after the harm?’, the applicant selected the ‘box’ marked ‘No’, and wrote:

   “No. I did not know how and there is nowhere I could go to.”

7. In response to the question of whether the applicant had moved, or tried to move to another part of Vietnam to seek safety, the applicant selected the ‘box’ marked ‘No, though did not elaborate (in writing) on this response with any reasons in the corresponding ‘text box’.

8. In response to the question of whether he thought that he would be harmed or mistreated upon return to Vietnam the applicant selected the ‘box’ marked ‘Yes’, and wrote:

   “They may make up stories to try to get money from me or my family if I do not cooperate with them or give them tip money, they will create problems such as retaining me (temporarily) at the airport to ask for more money.”

9. In response to the question of whether the applicant thought the authorities of Vietnam can and will protect him if he goes back, the applicant selected the ‘box’ marked ’No’, and wrote:

   “They would not protect me but would harm me in different ways because they know I do not support them or the government.”

10. In response to the question of whether the applicant would be able to relocate within the country, applicant selected the ‘box’ marked ‘No’, and wrote:

    “I do not know.”

11. Even were the Tribunal to accept at face value the applicant’s claim that he believes the Vietnamese regime is oppressive and undemocratic - as he has stated in his protection visa application - it does not necessarily follow that the applicant has a ‘well-founded fear of being persecuted’.

12. The entirety of the evidence in respect to the applicant’s protection claims are as outlined in his written responses (cited above). The Tribunal observes they are vague, lacking in detail or specificity of any kind, including not providing any names, dates, or other insightful specificity.

13. In the applicant’s agent submissions (provided in January and another in October 2020) the applicant’s representative states, “On the basis of the above information [country information] it is therefore evident the grounds existed for [the applicant] to fear persecution by the Vietnamese authorities, particularly since he believes that the Vietnamese authorities may be aware of his political dissidence, in light of his anti-government views.”

14. The Tribunal notes that nowhere has the applicant outlined or detailed where or how his “anti-government views” have been enunciated, or made known, much less has the applicant provided any indication of how or why the authorities would or may respond to any such view(s) he holds.

Hearing into the review

1. At the hearing into the review the Tribunal received an oral submission form the applicant’s representative. The representative conceded in behalf of his client (the applicant) that his applicant does not meet any of the criteria under law for the grant of a protection visa. The Tribunal accepted the representative’s submission, though first discussed what the representative had submitted with the applicant himself. The applicant confirmed with the Tribunal his representative’s submission that he does not meet the criteria for the grant of a protection visa, either by virtue of the definition as a refugee under the Act, or under the legal alternative of complementary protection. The applicant’s representative indicated to the Tribunal that the applicant would apply to the Minister directly for compassionate consideration of his circumstances under section 417 of the Act.

Relevant country information

1. As the applicant concedes he does not meet the criteria under law - as required for the grant of a protection visa - it is unnecessary for the Tribunal to consider any country information.

Findings of fact

1. The applicant is born [date] in Vietnam.

2. The applicant has provided the bio-page from his Vietnamese passport, which satisfies the Tribunal he is a citizen of Vietnam, a fact the Minister did not contest based on their assessment and ‘checks’ in respect to his identity.

3. The applicant first arrived in Australia [in] February 2013 as the holder of a temporary [visa].

4. The applicant applied for a protection visa class XA (Subclass 866) and associated Bridging visa on 15 January 2015.

5. The applicant has no right to enter any other country based on the evidence before this Tribunal.

6. The applicant has claimed two biological children. The applicant claims he shares these two children with his wife.

7. The applicant concedes he does not meet the criteria for the grant of his protection visa application, and has indicated to this Tribunal, he intends to draw upon section 417 of the Act to seek a favourable decision from the Minister.

FINDINGS

1. Given all the above, and based on the applicant’s own admission he does not satisfy the criteria as a refugee under law (including the legal alternative of complementary protection) the Tribunal is not satisfied - that in accordance with Section 5J(1)(a) of the Act - the applicant fears persecution for reasons of his political opinion.

2. Further to the above, the applicant is not a refugee as defined in Section 5H of the Act and the criterion in Section 36(2)(a) of the Act is not satisfied for this reason.

3. In addition, the Tribunal is not satisfied that the applicant is a refugee as defined by Section 5H(1) of the Act. Accordingly, the Tribunal is not satisfied the applicant is a person in respect to whom Australia has protection obligations outlined in Section 36(2)(a) of the Act.

4. As the Tribunal is not satisfied the applicant is a refugee, as defined in Section 5H(1) of the Act, an assessment in respect to Section 5H(2) of the Act has not been made.

Complementary protection assessment

1. Based on the applicant’s own evidence and legal submission, the applicant is not a person in respect to whom Australia has protection obligations.

2. An assessment in respect to Section 36(2C) has not been made.

Conclusions

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

3. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

5. The Tribunal has considered the circumstances of the applicant, and notes that while the Tribunal has not directly referred the matter to the Minister, the applicant is at liberty to pursue the lawful appeal options available to him.

Decision

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

*  *  *  *  *

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

2. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

3. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…